"Credits only" ESA and work related activity

Monday 13 Aug 2018


A look at some more unusual ESA situations for people with cancer: "credits only" claims and why they are worth hanging on to, what counts as work related activity if you are in the ESA Work Related Activity / UC Limited Capability for Work group and sanctions if you don't comply. 

 

Welcome to the fifth, and final, part of my meanderings through those very important "sickness route" benefits for people of working age with cancer.

 

  • In Part I looked at the changes occurring, how “sickness route” benefits y fit into the system and looked at Statutory Sick Payin detail 
  • In Part 2 I looked atEmployment and Support Allowance (ESA) and (Universal Credit (if unwell) and  how most cancer patients are exempt from the full Work Capability Assessment 
  • In Part 3 I looked at easing back into work during recovery: the work you can do while on ESA and then perhaps moving off ESA but with on-going support from Working Tax Credit. And how DLA or PIP can continue to be payable right through into full time work. And how this progression works a little differently within Universal Credit 
  • In Part 4, we looked at what happens should you do need to undergo the full Work Capability Assessment, if after recovering from a cancer treatment, you are still too sick to work, perhaps due to other health issues, long term side effects or adapting post-surgery

In this final part, I complete our round up of ESA with a few issues that may only affect a minority: why an ESA claim can still be worthwhile when they won’t pay you anything, what exactly is the “work related activity” they might ask you to do in that group and the sanctions if you don’t.


14  What's a "credits only" claim? And is it worth the hassle?

 One outcome of all that hard work filling in forms and being assessed is that, despite passing the test with flying colours, the DWP tells you that while they agree you qualify on sickness grounds, hey can’t actually pay you anything…

 In the past, this happened when you both – 

  • didn’t have the right National Insurance contributions for Contributory ESA; and 
  • your other income (together with that of any partner) or savings was too high for any Income-related ESA.

The result is that you remain on the books of ESA, but the only financial benefit is a weekly credit of your National Insurance contribution, which may help with future benefits claim and count towards a future State Retirement Pension.

From  May 2012 - a new group is also being affected, namely:

  • people who also  have too much income for Income-related ESA, but who do have the right contributions for Contributory ESA – and more recently “New Style ESA -, but come up against a 12 month time limit

14.1 The 12 month time limit

For people in the Work Related Activity Group, any Contributory ESA/ New Style ESA  stops after 12 months. Most people with cancer will go into the support group during and after treatments – and this has no time, limit. However, if ESA is still needed after recovery and the full Work Capability Assessment – as described in Part 4 of these blogs – kicks in, then one outcome could be a switch from the Support Group to the Work Related Activity one. 

This post 2012 time limit – breaking with the past National Insurance  covenant to pay out as long as you met the sickness criteria – then does not affect:

  •  the most unwell, as it does not apply to those in the Support Group, nor 
  • those on lower incomes as no time limit applies to either group within Income-related ESA or Universal Credit.

 So, if you are on the lowest incomes you are protected and if you have a good household income from other sources, then the change might not be too hard. But for those just about managing, with a partner working but not on great money, that £102.15 could be an important part of the household budget.

14.2 Why it's still worth keeping the claim going

But whichever way you have joined the “credits only” club, it may feel very tempting to just let the claim fade away the next time the DWP contact you to re-assess your health issues or invite you in for a work focussed interview. However, there may still be good reasons to keep your ESA “credits only” claim going:

  • Should your health difficulties get worse in the future (or perhaps you need further cancer treatment) then you may qualify to be re-assigned to the ESA Support Group. Your Contributory / New-style ESA claim would then kick back into life and start paying out – with Support Component - straightaway. But if you had let the claim lapse, then it would have to be a new claim, and so entitlement might well depend on possibly different National Insurance years (when you might not qualify) , but in any event the extra Support Component would only apply from Week 14 of a new claim.
  • On the other more positive hand, perhaps your recovery progresses and you are now ready to ease back into earning. While you might not be getting any ESA to be protected by the “permitted work” rules – that we looked at in Part Three – you would benefit from the same more generous disregard of permitted earnings under Housing Benefit or Council Tax Support. This could for example mean that you might get some £60 a week more help with the rent than if you were no longer an ESA claimant. 
  • Finally, your on-going ESA status also means that you won’t be expected to be actively job seeking if your partner were to make a joint claim for one of the main means tested benefits. Under Universal Credit for example, each partner is assigned to perhaps different work conditionality groups, so that without retaining your “limited capability” status, you could be required to become a full time active jobseeker. 

So, retaining your sickness status is more than just about the immediate tangible benefit of receiving National Insurance credits. It is very worthwhile checking out the impacts for you then, before letting your ESA claim lapse. 

 

15. Work related activity when unwell

It may be that all your time when claiming ESA during your cancer journey, you will be in the support group while awaiting receiving or recovering from cancer treatments. The issue of work related activity may not arise until you are ready to go from the support group, back into work. You can of course access some of the positive support and retraining on offer on a purely voluntary basis. 

But as we saw in Part 4 – possibly you might be ready and well enough to work, despite having recovered from the side effects of treatment. You may need to continue on ESA and possibly switch to the Work Related Activity Group, which is conditional on participation in work related activity. But what exactly does that involve? 

The idea is that this should not be anything like that expected from a full on jobseeker; it is not then about actively seeking jobs nor being available for work. The ESA assessment has recognised that you are not well enough to do that. Rather it’s about engaging in some activity that might make you more “work ready” as and when health permits. This might be by developing your skills or tackling some barriers that health or lifestyle issues could put in the way of a future return to work. 

This might include: training, planning to resume a course you were on, tackling literacy or numeracy issues, keeping in touch with an employer you aim to go back to, exploring reasonable adaptations to make work more possible or perhaps more controversially taking action on health issues (e.g. pain management, cognitive behaviour therapy, rehab programmes etc). Controversially,  in that this opens up a new area of “compulsory” treatments and ethical dilemmas.

Your first activity will be to attend – and actively participate  at a Work Focussed Interview (WFI) . Just turning up and siting grumpily in the corner or “no comment” would not be enough. The invitation to attend comes with warnings if you don’t and can leave people rather worried at what they might be forced into doing or whether their ESA is under threat.

Indeed, one Centre Visitor contacted me full of dread when called for one, but found it actually quite positive and helpful once she got there. She was relieved to find that she wasn’t to be sent on something just for the sake of it nor that there was any questioning of her entitlement to ESA, but that she could have a useful and positive discussion and agree some activity that felt both relevant to her own future aims and manageable as things were. It’s perhaps a shame, that the WFI can start off on the wrong foot, which may undermine the positive support that is on offer.

There is though, a danger for those unsure of future plans or finding it harder to explain your current difficulties and limitations, in that they could get pushed into something that may have less relevance and be harder to manage. So, it is worth having a think beforehand, about how you see your recovery and your realistic hopes of preparing for a return to work. And if nervous take someone with you. That could then maximise the chances of a constructive dialogue, useful support and the start of a beautiful relationship with your Jobcentre Plus Adviser

 

16 Sanctions on ESA and UC with (limited capability)  

These only could only, potentially apply if you are in the ESA Work Related Activity  / UC Limited Capability for Work group where failure to show up or participate in your WFI or to then t get involved in the agreed activity, can lead to your ESA being sanctioned.


16.1 The original ESA sanctions regime  

Now back in the day – i.e. before December 2012 - the “new deal’ of ESA went like this: the essential extra amounts for the added costs people face when long term sick were to be paid much earlier – at 3 months rather than 6months and a year – but in exchange you those claiming ESA who were not in the Support Group had to engage in work related activity. 

Sanctions were seen as a last resort, so that if you didn’t engage, then after fair warning, you lost half of that extra amount and if still not complying within 4 weeks lost the other half. However, as soon as you did comply you got the money back.

Your basic ESA was not in doubt: it was not disputed that you met the criteria for benefit and for Contributory ESA had made your NI contributions. It was accepted when the scheme was introduced that there was little evidence that sanctions had much overall effect on claimant behaviours, but that it was felt necessary to retain a “ naughty step”  for the most wilful.


16.2. The new regime for ESA and UC

The big December 2012 change was partly to emphasise a new tougher line generally and partly to line up the rates of sanctions in different benefits to enable a single rate of sanction ahead of the future Universal Credit. The result is the ESA logic has rather gone out the window – a sanction now means a loss of your basic benefit of £73.10,  leaving you ironically with just your “bonus for good behaviour” – currently worth £29.05 a week - to live on.

However, this new sanction is not quite as severe as at first appears, as you can apply to get 60% of the money back as a Hardship Payment, in line with the previous regime for jobseekers. This together with your untouched Work Related Activity Component, could leave you potentially with a similar amount of benefit coming in as under the old sanctions system, but in a rather roundabout way.

But to get to there, you do need to know there are discretionary Hardship Payments to be had, apply for them, meet the criteria and have more paper shuffled. For some this may just seem irritating, but for others, it may feel too hard to negotiate.

As before compliance – being good and saying “sorry” – will get your ESA back, but this will no longer happen straightaway. You will have to wait a further one, two or 4 weeks as part of the new regime’s more punitive approach, especially for “repeat offenders.

The new system is then effectively Universal Credit regime arriving ahead of the benefit itself. A big change if you are under the Universal Credit system, is that the e Hardship Payment becomes a loan, as it will then be recovered gradually from your future l benefit once the sanction has passed.

The concern is that the more vulnerable, chaotic or those whose confidence has been shot by their cancer journey may be both more likely to be sanctioned and then less able to negotiate their way through to Hardship Payments, back into compliance quickly or to feel able to challenge an unfair sanction.

Now the good news is that sanctions are less likely to happen to people with cancer than for many other ESA claimants: you may spend most/all of your time on ESA in the Support Component and if you do switch over to Work Related Activity Component, you may be quite focussed on recovery, be regarded with more sympathy and be in a position to engage with the positive support on offer.

That said, statistics do show that in March 2014 there were six times as many sanctions as in December 2012 and that 60% of sanctions are made against claimants with mental health issues. There is though still no evidence advanced to suggest that overall sanctions have that much impact on ESA outcomes, but they will of course on the individual affected.


16.3 Challenging an unfair sanction

If you do get sanctioned, please do get advice. Now it may be that you may have tried the patience of a saint and the best we can do is smooth the way to you getting right with Jobcentre Plus. But it may also be that you have felt pressured into an unsuitable activity and/or found that it is harder to manage that activity than at first appeared; unsympathetic or target driven responses to any such “failure” can lead to unreasonable sanctions.

 Over 50% of sanctions are reversed when the decision is looked at again by the DWP, which is much higher than their usual rate of changing decisions at that internal rethink stage of a Mandatory Reconsideration. And if not, it is always worth appealing. Just letting an unfair sanction go can not only cost you in the short term, but also mean that if a problem should re-occur, any future sanction could be harsher. 

An advisor can help resolve the issues to get your ESA back into payment, apply for Hardship Payments if needs be and look to get any unfair or unreasonable sanction overturned.

 

And so …

Here ends this mini-series on “sickness route” benefits. In a separate series of blogs on Universal Credit (UC), I will look at some key differences between Universal credit and Income-Related ESA

Please see the links and further reading – including the other parts of this series  – suggested  below.

If you want to explore your specific situation confidentially and in private, then please drop in or make an appointment with a Benefits Advisor at your nearest Maggie’s Centre. You can find your nearest centre here 

Links and further reading

External links

  • "Shocking increase" in ESA sickness benefit sanctions - BBC News, August 2014 - here
  • More than 40,000 people have had their benefits docked since 2012 - The independent, April 2017 - here
  • What to do if you have been sanctioned on ESA - Citizens Advice - here

Other blogs in this series

  • Benefits when off sick (1) : Benefits for sickness in general, where they fit in the benefits system and other help . Statutory Sick Pay in particular - here
  • Benefits when off sick (2):  Employment and Support Allowance and Universal Credit (for limited capbility) and ways in for people with cancer - here
  • Benefits when off sick (3):  Easing back into work while on benefits for sickness - here
  • Benefits when off sick (4) : Undergoing the full Work Capability Assessment - here

Other relevant blogs and mini-series you may find useful:

  • Benefits and Cancer – a useful overview and how sickness benefits fit in to the grand scheme of the benefits system and getting your full entitlement when affected by cancer – starting here
  • Benefits in Pension Age – focussing on the different benefits world after 65-ish and additional help for people affected by cancer – starting here
  • Disability Benefits – starting with AA, DLA, PIP and Cancer - here
  • Means tested benefits – a look at the traditional “legacy” means tested benefit which remain very important until March 2023 - starting here
  • Universal Credit -  introducing the new replacement for the 6 main means tested benefits for those of working age. UC aims to do things in a very different way from both the benefits it replaces and any other benefit - starting here

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